On December 4, 1995, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were whether the respondent’s (claimant’s) left knee condition resulted from his compensable injury of _______________, and whether the appellant (carrier) timely disputed the compensability of the claimant’s left knee condition. The carrier appeals the hearing officer’s finding that the claimant aggravated a preexisting left knee condition during a work hardening program for his compensable left shoulder injury and her conclusion that the left knee condition is compensable. The hearing officer also decided that the carrier timely disputed the compensability of the left knee condition. The carrier filed a conditional appeal relating to the addition of the timely contest of compensability issue at the CCH, but stated that that part of its appeal is withdrawn if the claimant did not file an appeal. The claimant did not file an appeal of the hearing officer’s decision. Thus, we do not consider that part of the carrier’s appeal which relates to the addition of the timely contest issue. The claimant requests affirmance.
DECISION
Affirmed.
It is undisputed that the claimant sustained a right shoulder injury in the course and scope of his employment on ________, and that Dr. T (Dr. T) performed surgery on the claimant’s right shoulder on ______________, as a result of the injury. It is also undisputed that the claimant underwent a work hardening program following his surgery and that the program was reasonable and necessary treatment for his right shoulder injury. Nurses’ notes reflect that the claimant complained of left knee pain at the time of his admission to the hospital on ___________ for shoulder surgery. The claimant testified that he did not have left knee pain until the evening of ________ after he had surgery. The claimant said that on December 1, 1994, he started the work hardening program for his shoulder which was prescribed by Dr. T and that in that program he did a lot of treadmill walking, bicycling, and some stair climbing. He was in the program five days a week for six weeks. He said he felt knee pain again during the work hardening program. Reports from the work hardening program reflect that the claimant did various activities including, among other things, some stair and ladder climbing, squatting, kneeling, treadmill walking, and a bicycle test, and that the claimant complained of left knee pain. In March 1995, Dr. T noted that the claimant told him that he had first noted left knee pain immediately following his shoulder surgery. Dr. T further noted that physical examination of the claimant’s left knee was “consistent with exquisite medial joint line tenderness accentuated with varus stress and McMurray’s maneuver.” On May 25, 1995, Dr. T wrote that the claimant developed left knee pain “coincident with the episode of surgery on his right shoulder,” and then stated:
As a result of his physical therapy and rehabilitation activities, specifically, the walking and squatting activities, this became significantly exacerbated to the point that he is left with chronic and residual left knee pain. I find these directly related to the ongoing treatment for his right shoulder and the rehabilitation for such.
In October 1995 Dr. T referred to the claimant’s left knee condition as a “significant injury.” The claimant was examined by Dr. Haig (Dr. H) at the request of the carrier and in September 1995 Dr. H examined the claimant’s left knee and diagnosed “internal derangement knee.” He noted that x-rays showed arthritis of the left knee and that there was marked tenderness over the medial joint of the tibia, directly over the meniscus. Dr. H recommended that an MRI scan of the left knee be performed. It is uncertain whether an MRI scan of the left knee was performed as there is no reference to it having been performed in the record.
There is no dispute of the hearing officer’s finding that the work hardening program was reasonable and necessary treatment for the claimant’s right shoulder injury. The hearing officer found that the work hardening program caused the claimant to aggravate a preexisting left knee condition and she concluded that the claimant’s left knee condition is compensable. The carrier contends that the hearing officer’s finding and conclusion are against the great weight and preponderance of the evidence. It has been held that the term “injury” as used in the workers’ compensation law includes the aggravation of a preexisting condition. Gulf Insurance Company v. Gibbs, 534 S.W.2d 720 (Tex. Civ. App.-Houston [1st Dist.] 1976, writ ref’d n.r.e.). In Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524, 526, (Tex. 1975), the court stated that “[t]he full consequences of the original injury, together with the effects of its treatment, upon the general health and body of the workman are to be considered.” In Texas Employers Indemnity Company v. Etie, 754 S.W.2d 806 (Tex. App.-Houston [14th Dist.] 1988, no writ), the employee suffered a compensable neck injury for which a myelogram was performed. The employee had low back pain immediately following the myelogram procedure. The court stated that “[i]f the myelogram, as the necessary treatment for the neck injury, aggravated a preexisting condition, appellee’s injury is compensable”. The court held that there was sufficient evidence that the myelogram probably aggravated the claimant’s preexisting lower back condition and contributed to the claimant’s incapacity. We disagree with the carrier’s assertions that the claimant has only been diagnosed with left knee pain. To the contrary, Dr. T has referred to the left knee condition as a “significant injury” and Dr. H has diagnosed an internal derangement of the left knee. We also disagree with the carrier’s assertions that there is no evidence of a preexisting knee condition, that is, a knee condition which was in existence prior to the claimant beginning the work hardening program, and no evidence of an aggravation based on reasonable medical probability. Dr. T’s report of May 25, 1995, provides evidence on both those matters. The hearing officer is the judge of the weight and credibility of the evidence, resolves conflicts in the evidence, and is free to believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. We conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not against the great weight and preponderance of the evidence. Etie, supra.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge